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December 21, 2011

If you're interested in the theoretical underpinnings of punitive damages, you might want to read Yale law student Amir Nezar's note in the Yale Law Journal: Reconciling Punitive Damages with Tort Law's Normative Framework. The theme of the note is that courts and commentators have missed the boat in coming up with a theoretical justification of punitive damages that's consistent with tort law. Economic theorists haven't gotten it right when they attempt to explain punitive damages as a method for deterring inefficient behavior, and "retributive justice" theorists haven't gotten it right when try to explain punitive damages as retribution for wrongs to society. In the author's view, punitive damages are better explained by corrective justice theory, which views punitive damages as the defendant's payment of a moral debt owed to the plaintiff. Or at least I think that's what he's trying to say. Check it out for yourself.